This is the first of three posts about the Commission's Communication on Tackling Illegal Content Online. Post Two addresses problems with relying on filters to identify unlawful content, and Post Three addresses dystopian aspects of the Communication.

This blog post is excerpted from our filing in response to the U.S. Copyright Office's 2016 Notice and Request for Public Comment on notice and takedown practice under the Digital Millennium Copyright Act (DMCA). The entire filing is available here.

Universal Music Group (“UMG”) sued Veoh Networks, Inc. (“Veoh”), an Internet-based service that allows users to share videos online, for copyright infringement. In the present proceedings, UMG moved for partial summary judgment that Veoh was not entitled to protection under 17 U.S.C. § 512(c), a safe harbor of the Digital Millennium Copyright Act designed to shield a service provider from liability arising from infringing conduct occurring “by reason of storage at the direction of the user.” In addition to storing videos uploaded by users, Veoh engaged in other activities (e.g., converting the format of the videos) to provide other users with access to them. UMG argued that because those other activities do not actually constitute storage, Veoh may not rely on § 512(c) as a shield to liability. The court denied UMG’s motion and rejected UMG’s narrow interpretation of the phrase “by reason of,” holding that such an interpretation was not consistent with its common meaning and that it would undermine the ability of § 512(c) to shield service providers from liability if they did anything with user-uploaded materials other than store it untouched. Instead, the court held that § 512(c) covers Veoh’s activities because they were designed to facilitate access to user-stored content.

These comments were prepared and submitted in response to the U.S. Copyright Office's November 8, 2016 Notice of Inquiry requesting additional public comment on the impact and effectiveness of the DMCA safe harbor provisions in Section 512 of Title 17

The Recording Industry Association of America (RIAA) is at it again. In a joint open letter to Congress, it is leading a push by the music industry to rewrite Internet copyright law in ways similar to its advocacy of the infamous Stop Online Piracy Act (SOPA) of 2012. SOPA failed miserably in Congress. It was abandoned after more than 15 million Americans objected to the bill’s attempt to restrict Internet freedom as 115,000 websites staged a massive blackout online.

These comments were prepared and submitted in response to the U.S. Copyright Office's December 31, 2015 Notice and Request for Public Comment on the impact and effectiveness of the DMCA safe harbor provisions in Section 512 of Title 17.

"“This is a tremendously important improvement for consumer protection,” says Andrea Matwyshyn, a professor of law and computer science at Northeastern University. “The Copyright Office has demonstrated that it understands our changed technological reality, that in every aspect of consumers’ lives, we rely on code,” says Matwyshyn, who argued for the exemptions last year.

"Annemarie Bridy, a University of Idaho law professor and affiliate scholar at Stanford University's Center for Internet and Society, co-wrote a law professors' amicus brief on behalf of YouTube Inc. in the Viacom v. YouTube case, which raised some similar issues. She says she has been following BMG v. Cox and that the court's decision on the DMCA safe harbor provision is the issue in the case that is most likely to have wider-reaching implications.

"Annemarie Bridy, an affiliate scholar at Stanford Law School’s Center for Internet and Society, said nothing in the law dictates a tweet is automatically copyrightable. Instead, it’s the content of a tweet that matters. You can own the copyright of that content if it’s original to you—the author—and if it’s in a fixed medium, she said, such as published in a book, magazine—or possibly even in a tweet.

"Using the DMCA in the past to deal with leaks got at least one company in trouble, said Jennifer Granick, director of civil liberties at the Stanford Center for Internet and Society. In 2003, a hacker broke into the servers of Diebold, Inc. and stole emails and files related to security flaws in the company’s voting machines. When graduate students reposted the files, Diebold served them with DMCA takedown notices. The students countersued the company for serving false notices, claiming Diebold didn’t actually have copyright over the material.

"If the violator keeps torrenting material, the copyright holder can file a “John Doe” lawsuit. Basically, the company sues hundreds or thousands of IP addresses, and a court can then order a university to divulge the names of the individual users through a subpoena, according to professor Annemarie Bridy of the University of Idaho College of Law.

"Andrea Matwyshyn, the law professor and former FTC senior policy advisor who put the petition together, says the application of DMCA has upset “the balance between consumer protection and copyright that Congress clearly attempted to strike in its drafting. That is the balance that needs to be restored.”"

"According to Hoffman, one potential legal landmine is the Computer Fraud and Abuse Act (CFAA). One of its key provisions states that,"it is illegal to intentionally access a computer without authorization or in excess of authorization and thereby obtaining information from any protecting computer." "It's not always clear which actions are illegal," Hoffman said. "Vagueness leads to selective enforcement.""

"Jennifer Granick, the Director of Civil Liberties at the Stanford Center for Internet and Society, says that none of the unlocking bills recently introduced to Congress provide a comprehensive fix for consumers."

"An attorney from Stanford’s Cyberlaw Clinic, Jennifer Granick, offered to help the 20-year-old Khanifar fight Motorola. The company eventually dropped its threats, and Granick went on to help persuade the Librarian to exempt cell phone unlocking under the DMCA in 2006."